Month: October 2018

An Ordinance to amend the Maharashtra Cooperative Societies Act of 1960

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An Ordinance to amend the Maharashtra Cooperative Societies Act of 1960, dated 30th October 2018 with immediate effect

Salient features of New Housing Chapter in MCS Act 1960.
1. Elections to the housing societies fir less than 200 members to be conducted internally by the society .

2. Concept of new members like Joint and provisional members introduced

3. Concept of Coop Hsg Association introduced to facilitate the formation of association of less than 5 societies for conveyance or Deemed conveyance matters .

4. Penaltyof Rs.25000 on Management committee introduced for not allowing inspections of documents u/s 32.

5.Scope of Sec.32 in inspection of documents widened .

6.Role of Housing federations widened .

7. HUF is specially included as person in the definition which was not included earlier .

8. Defaulter is specifically defined now in the Act itself.

CA Shilpa Shinagare
Member of Hsg Chapter Committee of Ministry of Coop .MH

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How Government Agencies Harass Consumers through Endless Litigation

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It is not for nothing that Indian courts are clogged and government is the biggest litigant. What is worse, the actions of government agencies in shirking responsibility for deficient service actually ends up harassing the people, tantamount to using public money with no accountability.
Whenever a complaint is filed against a government department, the standard ploy to evade accountability is to claim that the complainant is not a ‘consumer’ within the definition of the Consumer Protection Act, 1986 (COPRA). If nothing else, it ensures a delay in legal proceedings while the court first decides this issue.
Until recently, every one of us had to engage with the post-office for multiple reasons. In the initial years after COPRA came into force, any complaint against the postal authorities used to be brushed aside on the claim that post-office was doing duty as a part of the government and no action can be taken against the government.
Over the years, it has been settled that when a government agency is not performing a sovereign duty, but providing services of commercial nature, it cannot hide behind the cloak of sovereignty and shirk its responsibility towards its consumers.
Let’s look at some examples of how government agencies harass consumers by dodging responsibility and delaying grievance resolution.
Late Rama Chandra Jain had purchased 692 Indira Vikas Patras (IVP) in the name of his sons, daughters, etc, from the head post-office at Bolangir (Odisha). He lost all the 692 IVPs and reported it to the local police station on 25 June 2001. This, in turn, was intimated to superintendent of post-office, Bolangir, requesting it to stay payment of the maturity value of the lost IVPs until the claim was properly verified.
The deceased Mr Jain had also purchased 88 IVPs in favour of his son, the complainant in this case. On maturity of these 88 IVPs, the complainant raised a demand of Rs8,80,000 towards maturity value. The claim was rejected by the post-office citing some rules.
A complaint was filed in the district forum which ruled in favour of the son, on the basis of a precedent in the case of Ram Nath Mathuria vs Union of India in RP No. 1725/2001 decided by the National Consumer Disputes Redressal Commission (NCDRC) in March 2002.
In that case, it had been held that “in the absence of any other claim on the basis of the original IVPs, maturity value should be released in favour of the claimants after taking an indemnity bond to secure interest of the department.”
Accordingly, the district forum directed the post-office to release payment of the maturity value of 88 IVPs amounting to Rs880,000 to the complainant on his furnishing an indemnity bond within 35 days of the order. For any delay in payment, a penalty of Rs20 per day would be imposed until realisation.
The post-office filed an appeal before the state commission; this was dismissed on 30 December 2016 because representatives of the post-office failed to turn up for hearings before the commission. Shockingly, the post-office then filed a writ petition before the Odisha High Court in 2017 against the order of the state commission. As was to be expected, the Court dismissed the writ petition as withdrawn, since it was misconceived. That didn’t end the matter. The post-office again filed a miscellaneous case before the state commission which, too, was dismissed on 13 April 2018.
Once again, notwithstanding the pain inflicted on the complainant, the post-office had the temerity to file a revision petition in NCDRC against the state commission’s order.
The counsel for the post-office contended that complainant was not a consumer and, hence, no deficiency in service had been committed by the post-office. As such, the complaint was not maintainable.
But, remember, the district forum had already given a detailed order covering this issue and had even referred to an NCDRC order of 2002 on the subject.
NCDRC noted that there was no other claimant for the said amount; but the post-office could verify and take due precautions like indemnity bond, etc, for securing its interests and directed it to pay at least the maturity value to the complainant, after having failed in the several rounds of litigation.
In 2002, NCDRC had elaborately discussed a similar matter and directed the postal department to release the money, as sufficient time had elapsed since the date of maturity. Therefore, NCDRC concluded that it was clear that there was no error in the order passed by the district forum.
The sad part is that a hapless consumer, who was a customer of the post-office, was dragged through various rounds of litigation by an obdurate government agency for no fault of his (Superintendent of Post Office, Bolongir vs Jambu Kumar Jain, Rourkela—NCDRC order dated 11/09/2018).
Another case involves the regional provident fund commissioner’s office, Haryana (RPFC) and a provident fund (PF) subscriber. The subscriber filed a complaint against the RPFC on the ground that his pension had been wrongly fixed as Rs551 per month instead of Rs835 per month as per the Employees Pension Scheme, 1995. The complainant claimed that he was a member of Employees Provident Fund Scheme, 1995, for more than 35 years; therefore, he was entitled to the maximum benefit under the Scheme.  After hearing both parties, the district forum, on 25 August 2003, observed that the minimum monthly pension will be Rs 335 plus Rs500 adding up to Rs835 and not Rs551.
The order also directed the RPFC to re-examine the complainant’s case on the basis of a notification by the labour ministry on 16 November 1995. The RPFC was ordered to comply with the consumer forum’s order within 30 days. When the RPFC failed to comply with the order, the district forum issued bailable warrants of Rs5,000 with one surety for the like amount on 1 May 2006. RPFC filed a revision petition before the state commission against both orders; but it was also dismissed.
RPFC then filed a revision petition before NCDRC which heard counsel for RPFC including a request to condone a 246-day delay in filing the petition. Although NCDRC condoned the delay through its order of December 2008, it imposed a cost of Rs10,000 on RPFC.
NCDRC noted that the primary issue involved was to re-fix the complainant’s pension as per directions of the district forum. However, it noted that application for condonation of delay made two things very clear. One, that the department had agreed to abide by the order of the state commission and fix the pension as per the order of the district forum. Secondly, that the revision petition was based on the notification dated 15.6.2007 which was perhaps not available before the district forum or the state commission. Since the notification was a new ground that had been taken up by RPFC in the revision petition, it could not be considered at that stage. Finding no merit in the revision petition, NCDRC dismissed it.
Once again, it is the hapless consumer who was made to run from one forum to another due to the dilatory tactics adopted by a government department with public money.
While we correctly raise a hue and cry for poor service rendered by private companies, the fact is that government departments, often, fail the consumer even more because of the ineptitude, lack of accountability and high-handedness of government babus.

Death by Mosquito Bite is Accidental Death

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“Death of Policyholder due to Malaria after Mosquito Bite is an accidental death and hence Insurance Company is liable to pay the sum assured.”

In an interesting Case of National Insurance Co. Ltd. V/s Mosumi Bhattacharjee, (R.P. No.1270/2016), a question came before the National Commission to decide whether death of a Policy holder due to Malaria after a mosquito bite can be termed as accidental Death ?

Facts in short.
1. Late Mr. Debashish Bhatacharjee, the husband of the Complainant took the home loan from Bank of Baroda and along with it, he also availed facility of Term insurance like policy by name “Bank of Baroda Loan Suraksha Vima”, issued by the National Insurance Co. Incase of an accidental death, the policy amount was to be paid to the claimants

2. During the subsistence of the Policy, the Policy holder died due to Malaria and hence his legal heirs (LRs) applied to the Insurance Company fir getting the sum assured.

3. But the Insurance Company turned down the claim on the ground that Malaria itself is a disease and not an accident. Hence the LRs filed the complaint before the District consumer forum, which was allowed in their favour. Hence the Insurance Company filed the appeal in state commission, which was also rejected and hence the matter came to national Commission.

Held :
1. The National Commission upheld both the judgments of lower foras and observed that the Policy does not define the Term “Accident”. It relied upon the definition of Accident given in oxford dictionary, wherein it is defined as “An Accident is something that happens unexpectedly and not planned in advance and causes injury”.
2. Thus no one can predict about the mosquito bite and it can happen anywhere and anytime, like an accident. It relied upon the earlier judgment of Matbarsingh V/s Oriental Insurance Co.) wherein it has been held that Snake-bite, dog-bite, frost-bite are also accidents. It rejected the argument of the National Insurance company that Malaria itself is a disease and not an accident.

A) I feel this is an important judgment. Few days back, at least a person in every family was suffering from Dengue / chikungunya and Malaria. Few patients were succumbed to death due to such diseases.This judgment may be helpful to such families. Obviously terms of Policy, if any, will play an important role.
B) This decision also underlines the importance of having Term Insurance like policies. Consult an expert in this field.

 

https://www.casemine.com/judgement/in/590a32924a932663936ff762

Cooperative housing societies: Common issues and solutions

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Common issues in any cooperative housing societies or CHS can be resolved by discussion. If this does not solve the issue, the complainant may have to raise it to appropriate authorities, like municipal corporation, deputy registrar for cooperatives, consumer court and police

The recent Campa Cola episode shows that co-operative housing societies (CHS) must exercise due caution, when it comes to maintaining and ensuring that their buildings comply with the law. Sometimes, there are infractions between housing societies and individual apartment owners, as well as outsiders. However, many individual apartment owners are at a loss as far as grievance is concerned and do not know how to proceed with their complaint. There are several issues in a CHS, like car parking, leakages, fraudulent auditing, unauthorised construction (ala Campa Cola), and many other issues. Home owners need to know the right recourse to take action to ensure that their rights are maintained and upheld. Advocate Vinod Sampat who is the speaker at a seminar being hosted by Moneylife Foundation has given a brief of what you should do when you encounter various problems.

Some of the common problems related to co-operative societies and the solution to the same are produced as under:

Problem Suggestion Solution
A AGAINST BUILDERS (ACT FAST BEFORE NEW ACT IS INTRODUCED!)
1 Sale of open parking space by builder, sale of pocket terrace by builder, not executing the conveyance, not giving statement of accounts, not obtaining occupation certificate, not obtaining building completion certificate, not handing over original documents of title of the property, not transferring the property card in favour of the legal entity
 a) Approach Consumer Court for deficiency of service;

 

b) Approach the criminal court for cheating, criminal breach of trust, mischief, violations of the provisions of Sec. 11 & 13 of MOF Act;

 

c) Lodge  complaint  with  ULC  Department  as undertakings are given that conveyance will be executed within a stipulated period of time at the time of release of the plot from ULC;

 

d) Lodge complaint with ISO authorities if the builder has got an ISO certificate;

 

e) Lodge complaint with SEBI if the builder is going for a public issue and has not made the disclosures in the prospectus;

 

f)  Lodge complaint with BMC to black list the builder;

 

g) Lodge complaint with police seeking permission to take out morcha by peaceful means to protest against the acts of the builder.
2 Builder  not  sharing  the  amounts received from allotment of hoardings, installation of mobile tower on the societies terrace a) Approach the consumer courts for deficiency of service;

 

b) Request police authorities to file an FIR;

 

c) Approach city civil court;

 

d) Approach High Court.
3 Builders developing adjacent plot and apprehension  is  there  that  the FSI/TDR of the society is being used a) Write letters to BMC objecting to the same;

 

b) File a suit in High Court/ city civil court/ consumer courts praying for an injunction restraining the builder from utilizing the FSI/TDR of the plot of land for which the society has already been formed.
B CO-OPERATIVE SOCIETY
1 Society not allowing visitors to park their vehicles in the building premises
 a) Approach the police authorities stating that there is violation of the provisions of Table 15 READ WITHRegulation 36 of the Development Control Rules, read with Regulation 36 which stipulates that 10% (now 25%) of the parking space has to be kept vacant for the visitors;

 

b) Lodge a complaint with Bombay Municipal Corporation requesting the Corporation to cancel the occupation certificate as the terms and conditions pertaining to IOD have been violated.
2
Society not allotting car parking space to members		 a) Draw the attention to the provisions of Table 15 Regulation 36 of Development Control Rules of Greater Mumbai;

 

b) Approach Consumer Forum for deficiency of service;

 

c) Approach Co-operative Court;

 

d) Approach Registrar’s office;

 

e) Note if you have other like minded members who are deprived of parking one each can approach different authorities;

 

f)  It will not make difference if the builder has sold car parking space to some other flat purchasers.
3 Co-operative Housing Society collecting exorbitant amounts at the time of transfer of flat, collecting exorbitant amount towards non occupancy charges a) Approach consumer court for deficiency in service;

 

b) Approach police station for extortion, mischief against all the members of the managing committee with a specific request to lodge a First Information Report (FIR);

 

c) Approach metropolitan magistrates court;

 

d) Lodge complaint against auditor for professional misconduct.
4 a) Managing committee members not  issuing share certificate to members;

 

b) Co-operative Housing Society not taking action against the members of the managing committee who have misused the funds of the society;

 

c) Co-operative Housing Society not taking action against defaulters who are managing committee members

 a) Approach Consumer Forum against society;

 

b) Approach Co-operative Court;

 

c) Approach the office of the registrar to remove the managing committee members;

 

d) If more complainants are there they can approach different authorities.
5 Co-operative Housing Society and its members employing minors a) Lodge complaint for violations of Juvenile Workers Act, 1986, Bye law No 161(C), stipulates a punishment up to one year imprisonment and/or fine up to Rs20,000

 

b) Lodge complaint with labour & police authorities
C CRITICS CORNER
1 Office bearers behaving as dictators.

Some members are having parties and disturbing the peace in the building

 To lodge complaints with the registrar of co-operative societies, approach co-operative court or consumer forum;

 

For certain matters contact police authorities
2 Co-operative Housing Society not taking action against unauthorised construction Lodge complaint with Bombay Municipal Corporation (BMC) for unauthorised construction
3 Co-operative Housing Society not responding to queries as regards payment of service tax Do the correspondence with service tax department
4 Co-operative Housing Society not maintaining fire fighting equipments As per section 3(1) Maharashtra Fire Prevention and Life Safety Measures Act 2006 read with rule 4(2) Maharashtra Fire Prevention and Life Safety Measures

Rules every society having a building of ground plus four floors and above have to submit / arrange to submit every half yearly a certificate to the fire authorities. I would like to have a copy of the same at my cost for the last three years. Take up such matters with fire authorities.
5 Co-operative Housing Society not showing records related to

various expenses being incurred by the society

 Draw the attention of office bearers to the circular dated 10/3/1995 issued by co operative department.
6 Complaint  against  chartered accountant who has audited the accounts of the society Write to Institute of Chartered Accountants of India highlighting provisions of act, rules and bye laws; Example: Exorbitant amount collected as donation, security not given by persons handling cash. Rule 107-B.

 

Money collected for car parking deposit, amounts of some members waived off, legal expenses recovered from only some members + action at consumer forum.
7 Complaint against auditor on the panel of registrar Request the authorities to take disciplinary action against the auditor;

 

Request the authorities to remove the name of the auditor from the panel of auditors;

 

If it is a case of negligence approach the consumer forum for the losses caused with a prayer to recover the same from the auditor;

 

File criminal case. In our view permission to file criminal case from government authorities is required only if the person is appointed by the government;

 

If the employee is appointed by the head of the state then permission is not required.
8 Complaint against government officers for not giving the proper information

 

Always keep camera spy pen with you. It is not known when it can come handy

 Approach the higher authorities;

 

Ask for the actions initiated against him in his earlier postings;

 

Ask the pending departmental proceedings going against him as of date;

 

Here RTI Act can be of help to you.
D COURT MATTERS
1 Government officer not passing the order after the matter is kept closed for order.

 

 

 Politely state that the judgment in the case has been reserved since a long time. Order XX Rule 1 of Code of Civil Procedure Code, 1908 fixes a model Time Limit of 30 for pronouncement of Judgment. Therefore please pronounce the judgment at an early date and do the real justice since ‘Justice Delayed is Justice Denied’ (You may also ask for all orders being passed by the said quasi judicial authority)
2 No track record as to the court case Insist on roznamas of all the dates of the hearing
3 Reply received from advocates that

court is not sitting

 Tell the advocate to take up the matter with the judge; who has got additional charge of the said court.
4 How to speed up court case

 

 

 If you are a senior citizen you have a right to request the court to take up the matter for expeditious hearings in the light of the high court circular dated 3/08/2009. If a long date is given insist for a shorter date;

 

You can approach the higher court for directions to expedite the court case if there is urgency in the matter. File miscellaneous applications to get the necessary information.
5 How to protect ones interest in matters where there is possibility of litigation.

 

ALWAYS  CARRY  LATEST GADGETS AND RECORD

 Use modern technologies like Google search and ask for help;

 

Tell your advocate to pray for ad interim injunction;

 

Tell the court for the appointment of court commissioner.
E Right to Information -RTI
1 Despite writing no action is being initiated by government officers Make an application under the Right to Information Act (RTI) to the public information officer.
2 Evasive replies are given by the public information officer. 4578 illegal cell towers in Mumbai. Action taken big zero. If a common man breaks the law will the BMC be lenient. What was our sleeping giant doing when such towers were installed? Why are criminal cases not being filed by BMC suo moto? File an appeal. You may also file another application with the public information officer asking for information which may include copies of all the registers being maintained by the office, when the said registers are being updated, details of the registers which are incomplete, number of files in the office which are misplaced, not traceable, number of letters received per month by the office, details of the number of matters disposed of within one week, inspection of the files with specific reference to the files of the matters disposed of within one week. If you have asked for documents like certified true copy you can also approach the consumer forum as you are a consumer;

 

To put pressure you can tell your relative at say Gujarat to file a complaint from Gujarat in Gujarati. Section 11(c ) of the Consumer Protection Act, which stipulates that a case can be registered where the cause of action wholly or in part arises. (Samajnewale ko ishara kafi hai);

 

Ask for inspection and reply given to RTI queries in the last six months.
3 Society not getting copy of building plan Write to the Bombay Municipal Corporation (BMC) authorities asking for the necessary information using  the Right to Information (RTI) act;

 

Also approach consumer forum for deficiency of services.
F Police-related matters
Police not taking steps to lodge an FIR in case of a cognisable offence Approach the magistrate u/s 154 of Criminal Procedure Code (CPC) to direct the police officers to register an FIR.
G How to draft complaint letters
Letter to Co-operative Society/ Government authorities.

 

 

 Address to society, managing committee members and various government authorities;

 

Follow up with email to various government authorities;

 

Take up the matter on Lokshahi Din;

 

Just do not stick to one subject. Highlight all the wrong things done in the society;

 

Dramatise the facts; For eg: Say that the collective value of the property is approx Rs50 crore. If it is government department like BMS say that the yearly budget is Rs2,800 crore and the same is not properly utilised. Ask for information which will result in time being spent by the opposite party which information may not be very important for you;

 

Highlight instances of corruption, inefficiency pointed out by government authorities eg. Anti corruption bureau, comptroller and auditor general;

 

Request the government authorities to download the orders as is stipulated in Right to Information act. It is common knowledge that authorities do not do all their jobs as per provisions of all in all cases, follow up with Right to Information application if the matter pertains to government department.

 

LASTLY reserve your right to take action as per due process of law.
H Action against auditors
Vinod Sampat
18 November 2013 

(Adv Vinod Sampat is a practising lawyer since past 28 years. He has authored several articles on property-related matters and written 46 books on cooperative societies, transfer of flats, recovery of dues, registration and stamp duty matters. He has been an Hon. Patron member of the Estate Agents Association of India. He is also the Hon. Advisor of the Federation of Accommodation Industry of India and is an advisor to the Maharashtra Chamber of Housing Industry as well as the Federation of Accommodation Industry in India, apart from being part of many committees and winning several honours.)

https://www.moneylife.in/article/cooperative-housing-societies-common-issues-and-solutions/35303.html